Posts Tagged ‘originalism’

Justice Souter: Closet Originalist?

Sunday, June 13th, 2010


It’s hard not to love the recently-retired Justice Souter.  A one-of-a-kind individual who writes, not with a computer or even a typewriter, but with a fountain pen.  Who never uses email, cell phones or answering machines.  Whose home is filled with thousands of books, but no TV.  More than that, he doesn’t fit neatly into any particular camp.  Too liberal for the conservatives, and too old-fashioned for the liberals.  A former farmboy who lived in the same farmhouse all his life (until the weight of his books prompted a move last year), and yet at the same time as ivory-tower as they come.

But we’ve never been particular fans of his jurisprudence.  It seems too far removed from reality — both the realities of modern life, and the realities of law.  And the ironic thing is, it’s precisely because his judicial philosophy strives to reflect these realities as they change over time.  Because, despite being as stuck-in-the-past as can be imagined, he is not an originalist, but one who thinks the meaning of the Constitution must evolve with time.  And, being such an old-fashioned guy, he’s not exactly the most likely to know just how the times be a-changin’.

This was highlighted really well by his speech at Harvard’s commencement ceremonies this year.  (You can, and should, read the full text here.)

Souter used his speech to summarize why he thinks the jurisprudence of originalism is wrong.  Originalism is simply the idea that the meaning and principles of the Constitution do not change over time — and that reading in new meanings is little more than legislating from the bench.  Souter said this is wrongheaded, because the Constitution (more…)